(concurring in judgment):
Alan Shurberg and Shurberg Broadcasting Company of Hartford, Inc. (Shurberg) petition for review of the decision of the *927Federal Communications Commission (FCC or Commission) permitting Faith Center, under the Commission’s minority distress sale program,1 to sell its Hartford broadcast properties to Astroline Communications Company Limited Partnership (Astro-line), a minority (Hispanic) controlled enterprise. Shurberg challenges the FCC decision on several grounds. His constitutional challenge alleging that the sale to Astroline under the distress sale program violates equal protection as guaranteed by the Fifth Amendment2 warrants a reversal of the Commission’s decision on the ground that it does not satisfy the “narrowly tailored” requirement of equal protection analysis.
I. Facts
Prior to 1977 Faith Center, Inc. (Faith Center) held licenses in various cities to operate three television stations and one FM station. However, Faith Center solicited funds that were not used for the purpose described in its broadcasts which re-suited in the revocation of all its licenses except WHCT-TV in Hartford, Connecticut whose license had been designated for revocation hearing. The first two attempts by Faith Center to make distress sales of WHCT-TY failed due to the minority purchasers’ inability to obtain financing. After these two failed attempts, Shurberg attempted to have an open comparative hearing but his petition was denied by the FCC. Subsequently, the Hartford station and license were transferred to Astroline in a non-competitive proceeding pursuant to the Commission’s distress sale policy which promotes minority participation in the ownership of broadcast properties.3 The transaction was consummated on January 23, 1985. Thereafter the case came before this court for review on a Petition by Shurberg and eventually, in response to the request of the Commission, the record, not the “case,” was remanded to the FCC. With the case in that status at the end of the *9281987 term of Congress, the following rider was attached to Congress’ Continuing Resolution, approved December 22, 1987:
That none of the funds appropriated by this Act shall be used to repeal, to retroactively apply changes in, or to continue a reexamination of, the policies of the Federal Communications Commission with respect to comparative licensing, distress sales and tax certificates granted under 27 U.S.C. 1071, to expand minority and women ownership of broadcasting licenses, including those established in Statement of Policy on Minority Oownership of Broadcast Facilities, 68 F.C.C.2d 979 and 69 F.C.C.2d 1591, as amended 52 R.R.2d 1313 (1982) [sic4] and Mid-Florida Television Corp., 60 F.C.C.2d 607 Rev. Bd. (1978) [sic5], which were effective prior to September 12, 1986, other than to close MM Docket No. 86-484 with a reinstatement of prior policy and a lifting of suspension of any sales, licenses, applications, or proceedings, which were suspended pending the conclusion of the inquiry....
On February 9, 1988 the FCC issued an Order in Faith Center, Inc. BC Docket No. 80-730 which included the following:
In compliance with this litigation [set forth above], the Commission has ordered MM Docket No. 86-484 closed, thereby terminating the reexamination of its licensing policies based on racial, ethnic or gender preferences. Order, FCC 88-17, adopted January 14, 1988. In order to comply with the legislation fully, the Commission also ordered that its licensing policies based on racial, ethnic or gender preferences that were in effect prior to September 12, 1986, be reinstated and that the presiding Administrative Law Judges, the Review Board, and the Office of the General Counsel process all licensing cases in a manner consistent with Commission policy in effect prior to September 12, 1986. Id4
The FCC then denied Shurberg’s application for a comparative hearing and Shur-berg now seeks review by this court of the Commission’s Order. Shurberg complains of being denied a comparative hearing, alleges that ex parte contacts tainted the validity of the proceedings, and attacks the Commission’s application of its minority distress sale policy to him. However, the case has leveled down to a constitutional attack on the distress sale policy.
II. Constitutional Analysis
As others have noted,5 the Supreme Court opinions on the constitutionality of minority preference programs are unclear and disjoined. The four principal cases— Regents of the University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978); Fullilove v. Klutznick, 448 U.S. 448, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980); Wygant v. Jackson Board of Education, 476 U.S. 267, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986); City of Richmond v. J.A. Croson Co., — U.S. -, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989) (citations to Slip Opinion) have spawned a multitude of separate and diverse opinions. Only portions of Justice O’Connor’s Croson opinion commanded a majority of the Court.6 Con*929sequently, my colleagues have drawn differential conclusions from those wide ranging opinions. The task, therefore, is to fashion an opinion based on the soundest reasoning in the minority preference cases. In my opinion, generally following Justice Powell’s reasoning in the first three principal cases7 and the Croson majority is the superior approach to solving the troublesome issues presented by minority preference programs.
Some broad settled principles can be sifted from the Court’s decisions on minority preference programs. First, “benign” racial or ancestoral distinctions are given the same standard of review as invidious classifications. Croson, — U.S. at -, 109 S.Ct. at 721 (O’Connor, J.), 109 S.Ct. 735 (Scalia, J.). Wygant, 476 U.S. at 273, 106 S.Ct. at 1846; Fullilove, 448 U.S. at 491, 100 S.Ct. at 2781 (Burger, C.J.); Bakke, 438 U.S. at 291-299, 98 S.Ct. at 2748-53 (Powell, J.).8 That standard is strict scrutiny. Croson at -, 109 S.Ct. at 721 (O’Connor, J.), -, 109 S.Ct. 735 (Scalia, J.). Such examination has two phases: 1) “The racial classification ‘must be justified by a compelling government interest.’” Wygant, 476 U.S. at 224, 106 S.Ct. at 1818 quoting Palmore v. Sidoti, 466 U.S. 429, 432, 104 S.Ct. 1879, 1882, 80 L.Ed.2d 421 (1984); Croson at -, 109 S.Ct. at 720 (O’Connor, J.). 2) The government program used to achieve its objective must be “narrowly tailored.” Croson at -, 109 S.Ct. at 728; Fullilove, 448 U.S. at 480, 100 S.Ct. at 2775; Wygant at 274, 106 S.Ct. at 1847. A narrowly tailored preference program must have two characteristics.9 First, the program must bear some relationship to the compelling state interest it seeks to vindicate. Fullilove, 448 U.S. at 514-15, 100 S.Ct. at 2793 (Powell, J.).10 Second, the program must operate to minimize its burden on innocent non-minorities. Wygant, 476 U.S. at 282-84, *930106 S.Ct. at 1851-52; Fullilove, 448 U.S. at 515, 100 S.Ct. at 2793. (Powell, J.).
The two contentions asserted in support of the constitutionality of the Commission’s distress sale policy are that it remedies past societal discrimination and promotes programming diversity. Dissent op. 939, 952.11 Because the Commission’s distress sale program is not narrowly tailored to achieve either of its required objectives, the program, in my opinion, fails to meet constitutional requirements.
A. The Untailored Effect
The distress sale program is not only not “narrowly tailored,” it is a completely un-tailored program. That is, the program is open-ended in that circumstances may cause it to be applied to any broadcast licensee without regard to any past discrimination and thereby deprive all nonminorities of their right to equal access to a broadcast license. The FCC program thus denies the equal protection of the law to innocent nonminorities.
The licenses of thirty-eight stations have been subjected to the minority distress sale program.12 While the number of stations is not great, the value of the stations involved run well into the millions. For instance the license renewals of RKO’s highly valuable TV stations in Boston, New York and Los Angeles were denied,13 (not on grounds of discrimination), and they could have been transferred under the minority distress sale program, the FCC consenting. Had the program been in effect in 1971, the Greater Boston station could also have been brought under the distress sale program.14 Rupert Murdoch’s television station in Boston might also have been brought under the distress sale policy as a result of the well publicized legislative intervention in the application of the FCC’s change of policy with cross-ownership rules. See, News America Publishers, Inc. v. FCC, 844 F.2d 800 (D.C.Cir.1988). *931Thus, in judging whether the program is narrowly tailored consideration should be given not only to the number of stations that have been affected but also to the value and share of the broadcast market of the stations that could be brought under the program with a resulting large subsidy.15 The minority distress sale program presents opportunities for minorities to be insulated from all competition and to receive very substantial subsidies that are not in any way related to past discrimination. The number of licenses which become available for distress sales under the minority program is wholly fortuitous, being dependent upon decisions by third party licensees whose practices run afoul of FCC requirements.16
This case presents a good example of a license becoming subject to the minority distress sales program independent of any past discrimination. Here, Faith Center was alleged to have fraudulently solicited funds by not using the funds for the stated purpose in violation of 18 U.S.C. § 1343. 82 F.C.C.2d 1 (1980), reconsid. denied, F.C.C. 81-235 (1981), aff'd mem., Faith Center Inc. v. FCC, 679 F.2d 261 (1982), cert. denied, 459 U.S. 1203, 103 S.Ct. 1188, 75 L.Ed.2d 435 (1983). There is no connection between Faith Center’s violation and any past discrimination that is in any way related to the number of licenses which may become available to minorities under the distress sale program. Although, in practice, only a small number of licenses have been transferred pursuant to the policy, there is no actual limitation, in theory or in practice, on the number of licenses that may be so transferred. Nor is there any requirement that the offense of the licensee be in any way related to any act of unlawful discrimination. The distress sale program bears no relationship to any alleged past discrimination and, therefore, violates the Croson majority position that:
[Bjecause racial characteristics so seldom provide a relevant basis for disparate treatment, and because classifications based on race are potentially so harmful to the entire body politic, it is especially important that the reasons for any such classification be clearly identified and unquestionably legitimate.
Croson at -, 109 S.Ct. at 727, quoting Fullilove, supra, 448 U.S. at 533-35, 100 S.Ct. 2903-04 (Stevens, J., dissenting) (footnotes omitted).17
Likewise, because the distress sale program has no limits of any character it is not sufficiently tailored to the goal of promoting programming diversity. Compliance is voluntary and the program contains no assurance that any programming diversity will be achieved.18' Thus, the FCC, subject only to the broad public interest standard, has unfettered discretion in approving distress sales.
The Silberman opinion also contends that the distress sale program, as a means of *932promoting diversity, is not a means that is reasonably related to its goal. Specifically, this argument is that there has been no demonstration of a nexus between minority ownership and programming diversity. In reasoning to its conclusion, this contention discounts Congress’ decision expressed in the 1987 appropriations rider19 to prohibit the Commission from expending funds to investigate whether a nexus exists between programming diversity and minority ownership. The Committee Report stated Congress so acted because it found that there was such a nexus. S.Rep. No. 182, 100th Cong., 1st Sess. 76 (1987).20 The Silberman opinion doubts whether “mere congressional assertions” may be taken to embody a congressional finding to which courts must defer. Silberman at 922. I have no such doubt. Congress is not required to write legal opinions to justify its legislation. Chief Justice Burger stated in Fullilove: “Congress, of course, may legislate without compiling the kind of ‘record’ appropriate with respect to judicial or administrative proceedings.” Fullilove at 478, 100 S.Ct. at 2774. See, Dissent at 940.
In stating that the 1987 Senate Committee Report was merely assertive, the Silber-man opinion is certainly correct. However, the Report also made reference to H.R.Rep. No. 765, 97th Cong., 2d Sess., 40 (1982), which clearly, and at some length, detailed the support for the legislative conclusion that there was a nexus between minority ownership and programming diversity. H.R.Rep. at 42.21 The 1987 Senate Report incorporated the 1982 Report by reference. Given such incorporation, it is difficult to dispute the assertion that Congress found there was a nexus between minority ownership and programming diversity. Such finding, however, does not completely insulate a minority preference program from judicial review.22 And, as previously stated, that review must be conducted with strict scrutiny.23 Croson -, 109 S.Ct. at 721 (O’Connor, J.), 109 S.Ct. at 735 (Scalia, J.).
*933B. Undue Burden on Nonminorities
As a remedy of past discrimination and a means to promote diversity, the minority distress sale program unduly burdens innocent nonminorities. It operates so as to necessarily impact on a discrete class of nonminorities — i.e., every nonminority applicant for a broadcast license in a particular market that is designated for revocation hearing. The effect of this FCC program is particularly damaging because it removes the opportunity to obtain a license in a competitive market that is unlikely to be repeated.24 Normally, a broadcast license is retained by an incumbent licensee if he so desires; thus, a broadcast license designated for revocation hearing that is unlikely to be renewed presents a rare opportunity for individuals such as Allen Shurberg to attempt to obtain a license in a particular market.25 The distress sale program takes this opportunity away from every individual who is not classified as a minority as defined by the FCC.26
The dissent asserts that since Shurberg did not have a vested ownership interest in the station, he lacked a reasonable expectation of acquiring any license and hence cannot succeed in a constitutional attack on the policy. Dissent at 951-52. This is peculiar reasoning. In my view the fact that he is a valid applicant denied a hearing to his damage permits him to successfully attack the unconstitutional character of the denial. The dissent analogizes the distress sale program to an affirmative action hiring plan as opposed to a firing plan. Justice Powell’s Wygant opinion expressed a preference for remedying employment discrimination through hiring plans because they diffused the burden of a race conscious program throughout society instead of disrupting the expectations of a small group with an established interest. 476 U.S. at 282, 106 S.Ct. at 1851.
The dissent’s analysis is unpersuasive. While the minority preference plan does not neatly fit into Justice Powell’s dichotomy of hiring and firing plans outlined in Wygant, the program operates more like a firing plan in that it imposes its burden squarely on a small group of innocent people, like Shurberg, denying them a unique and tangible benefit — the opportunity to compete for a broadcast license that would normally under applicable decisions, the statute and rules be open to a comparative hearing. Communications Act of 1934, 47 U.S.C. § 309(e), amended; Ashbacker Radio Corp. v. FCC, 326 U.S. 327, 330, 66 S.Ct. 148, 150, 90 L.Ed. 108 (1945).27 Thus, the distress sale program completely foreclosed Shurberg from his best and perhaps only genuine prospect of obtaining an ownership interest in Hartford. In this way, the FCC always concentrates the burden of its minority preference program on a single *934individual or small group in a community that desires a broadcast license and are able to finance the acquisition without being subsidized.
The dissent also argues that the distress sale program does not unduly burden non-minorities because it affects only a fractional percentage of broadcast licenses. Dissent at 952. This argument is a nonstarter because regardless of the impact of the program on the entire market, the burden of hopefully correcting some discrimination and achieving some diversity in programming falls largely on Shurberg in this case and will necessarily exclude every nonminority individual in every distress sale. These burdened individuals are entitled to the equal protection guaranteed by the Fifth Amendment even though constitutional violations by the program have not yet reached substantial proportions. Supra, n. 2.28 The rights of every man are violated when the rights of one are diminished.29
Conclusion
The FCC minority distress sale program thus deprives Alan Shurberg and Shurberg Broadcasting of their equal protection rights under the Fifth Amendment. The program is not narrowly tailored to remedy past discrimination or to promote programming diversity because it unduly burdens Shurberg, an innocent nonminority, and is not reasonably related to the interest it seeks to vindicate.
For the foregoing reasons I join in the judgment of the court, that the minority distress sale program denies Shurberg equal protection under the due process clause of the Fifth Amendment.
.The FCC’s distress sale policy to promote Minority Ownership of Broadcasting Facilities, 68 F.C.C.2d 979, as expanded and reaffirmed in 1982 provides:
The distress sale policy allows broadcasting licensees whose licenses have been designated for revocation hearing, prior to the commencement of a hearing, to sell their station to a minority-owned or controlled entity, at a price “substantially” below its fair market value. A licensee whose license has been designated for hearing would ordinarily be prohibited from selling, assigning or otherwise disposing of its interest, until the issues have been resolved in the licensee's favor. Thus, extension of the tax certificate and distress sale policies fosters minority ownership by providing broadcast licensees with an incentive to transfer their interests to minority-owned or controlled entities. Id., at 851.
In the Matter of Commission Policy Regarding the Advancement of Minority Ownership in Broadcasting, 92 F.C.C.2d 849, 861. The stated objective was to increase diversity programming to serve First Amendment principles and to reflect minorities’ tastes and viewpoints. Id. at 850. The Commission also reported:
Since 1978, we have approved 27 distress sales and 55 tax certificates,* which have contributed significantly to increased minority ownership in broadcasting.... [The amendment of the] distress sale policy marks a departure from our long established practice of prohibiting a licensee in a renewal or revocation hearing from disposing of its interests prior to the resolution of issues in its favor.
* Tax certificates authorized by 26 U.S.C. § 1071 permit sellers of broadcast properties to defer capital gains taxation on a sale whenever the sale was “necessary or appropriate to effectuate a change in a policy or the adoption of a new policy by the Commission with respect to the ownership and control of radio broadcasting stations ...” The policy arose originally in connection with divestitures imposed by the Commission’s multiple ownership rules.
Id. at 852, 858.
The 1978 policy statement requiring the distress sale price to be substantially below its fair market values was expanded in 1980 to limit the licensee’s recovery to not more than 75% of the station’s fair market value. Lee Broadcasting Corp., 76 F.C.C.2d 462 (1980).
. Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954).
. See n. 1. Since its adoption in 1978, 38 distress sales have been approved by the Commission and the overall effort of fostering minority ownership has been moderately successful. See Distress Sales Approved, copies available from FCC Consumer Assistance and Small Business Division, Office of Public Affairs (updated October 18, 1988). Astroline states that the number of minority controlled stations acquired by all means has nearly doubled from less than one (1) percent in 1977 to now close to two (2) percent of all broadcast properties licensed by the Commission. (Astroline Brief, p. 5, n. 3).
. The congressional ban on reexamination of the FCC's distress sale policy was reenacted in 1988. 134 Cong.Rec. S-10,004 (Daily ed. July 7, 1988).
. See, Silberman, at 910. Dissent at 934.
. Johnson v. Transportation Agency, 480 U.S. 616, 107 S.Ct. 1442, 94 L.Ed.2d 615 (1987), is not strictly applicable to the constitutional analysis that is required here. Johnson is a Title VII case which expressly recognized that Title VII analysis differs from constitutional analysis. 480 U.S. at 627-28 n. 6, 107 S.Ct. at 1449-50 n. 6. However, applying Johnson's Title VII requirements, which are analogous to constitutional analysis required here, the FCC’s minority distress sale program is flawed. In Johnson, the Transportation Agency implemented an affirmative action program in which the sex of a job applicant could only be taken as one factor in an employment decision, and the Court relied heavily on the fact that, under the program, sex or race was considered as a mere plus factor in the evaluation process:
[T]he Plan merely authorizes that consideration be given to affirmative action concerns when evaluating qualified applicants.... [T]he Agency Plan requires women to compete with all other qualified applicants. No persons are automatically excluded from consideration; all are able to have their qualifica*929tions weighed against those of other applicants.
Johnson, 480 U.S. at 638, 107 S.Ct. at 1455 (emphasis in original).
The FCC’s minority distress sale program works precisely to the opposite end since it takes a broadcast license completely out of the normal competitive licensing process and all nonminority individuals, Shurberg included, are automatically excluded from competing. The minority’s status here is not merely a small plus factor. Rather, it is the determinative factor that deprives all nonminorities of any opportunity to compete. Thus, the virtues Justice Brennan found in the narrowly tailored Transportation Agency Plan point out the vices in the untailored FCC minority distress sale program.
. Choper, Continued Uncertainty as to the Constitutionality of Remedial Racial Classifications: Identifying the Pieces of the Puzzle, 72 Iowa L.Rev. 255 (Jan. 1987).
. As stated in Croson: “[T]he mere recitation of a "benign’ or legitimate purpose for a racial classification, is entitled to little or no weight.” Croson at -, 109 S.Ct. at 724. (Citing Weinberger v. Wiesenfeld, 420 U.S. 636 at 648, n. 16, 95 S.Ct. 1225 at 1233, n. 16, 43 L.Ed.2d 514 (1975) which, as here, involved the due process clause of the Fifth Amendment.). Thus, there is no difference, in this respect, between pronouncements of "benign” purpose by Congress or state legislatures.
. The Supreme Court has not explicitly held that a race conscious program aimed at promoting diversity must be structured to minimize the burden on innocent nonminorities. It is quite difficult, however, to conclude that the Court would not impose such requirement where the constitutional right to equal protection is involved. The best explanation for the Court's failure to so act is that Justice Powell’s opinion in Bakke is the only prior consideration given to the issue as to whether promoting diversity is a justification for a race conscious program. Consequently, the Court has not had the occasion to develop or apply the narrowly tailored doctrine explicitly to promoting diversity. Because the minority distress sale policy imposes the same injury on innocent nonminorities regardless of whether the justification asserted for the affirmative action program is to promote diversity or to remedy past discrimination, it is logical that the no undue burden test would apply with equal force in both cases.
.The dissent in n. 46 recognizes "that Faith Center’s misconduct was unrelated to racial discrimination. [And then asserts] [S]urely this can make no difference.” But it does. It points out that this award does not even remedy one instance of racial discrimination. While it is not required that the "resources themselves must be the product of past discrimination," if they had been, the minority distress sale program would have remedied some identifiable past discrimination, but not even that justification exists here. The minority distress sale program presents opportunities that are not dependent on any past discrimination — societal or specific. Therefore, the program bears no relationship to the asserted governmental interest in remedying past discrimination as required by Fullilove. 448 U.S. at 514-15, 100 S.Ct. at 2793 (Powell, J.).
.The question of whether promoting programming diversity and remedying societal discrimination constitute compelling government interests need not be reached here. In City of Richmond v. Croson Co., supra, Justice O’Connor’s plurality opinion held open the possibility that Congress, pursuant to its power under Section 5 of the 14th Amendment, may legislate race-conscious programs on grounds which the several states may not. Croson at -, 109 S.Ct. at 720. Justice Kennedy’s concurrence, however, pointedly challenged Justice O'Connor's assertion that Congress may legislate to remedy society discrimination and noted that such a case "is not before us, any reconsideration of that issue must await some further case.” Croson, at -, 109 S.Ct. at 734 (Kennedy, J.).
On the issue of promoting programming diversity, the dissent and Judge Silberman have some disagreement. In Bakke, Justice Powell held that promotion of diversity in the school/university context constituted a compelling state interest. 438 U.S. at 311-313, 98 S.Ct. at 2759-60 (Powell, J.). Outside of past governmental discrimination, the Court has not recognized any other governmental interest as compelling. Yet, as the dissent observes, Justice O’Connor's Wygant opinion explicitly holds open the possibility that “lower courts” could rely on other interests sufficiently compelling "to sustain the use of affirmative action policies.” Wygant, 476 U.S. at 286, 106 S.Ct. at 1853 (O’Connor, J.). The dissent contends that this Circuit's holding in West Michigan Broadcasting v. FCC, 735 F.2d 601, 614-15 (D.C.Cir.1984), recognized the promotion of programming diversity as an interest sufficiently compelling to "sustain the use of affirmative action policies" and this court is bound by West Michigan. Dissent at 941. Judge Silberman reluctantly accepts the holding in West Michigan that programming diversity constitutes a compelling state interest. He considers such contention to be “a somewhat Orwellian notion.” Silberman, J. at 920, n. 27. In this context, it is significant to note that Justice O'Connor’s Croson plurality opinion indicates that racial classifications should be "strictly reserved for remedial settings” in order to avoid fueling racial animosities. Croson at-, 109 S.Ct. at 721 (O'Connor, J.). This case does not involve a “remedial setting.”
Because the minority distress sale program is not narrowly tailored, it is not necessary in this opinion to reach the question whether either promoting programming diversity or remedying societal discrimination are a sufficiently compelling governmental interest to support the use of government sponsored minority preference programs.
. See Distress Sales Approved, copies available from FCC Consumer Assistance and Small Business Division, Office of Public Affairs (updated October 18, 1988).
. See RKO General, Inc. v. FCC, 670 F.2d 215 (D.C.Cir.1981) (license renewal denied for corporate misconduct).
. Greater Boston Television Corporation v. FCC, 463 F.2d 268 (D.C.Cir.1971) (license renewal denied for improper ex parte contacts).
.The dissent contends that objecting to the minority distress sale program on the grounds that there is no limit to the number of licenses the program may reach is "perverse” in light of the relatively few distress sales over the previous ten years. Dissent at 950 n. 40. This attack misses the thrust of the argument; the lack of numerical limits on the program is but one aspect of the untailored nature of the minority distress sale policy. In addition to the lack of any numerical limit on the program, there is no limitation whatsoever as to the value, size or market share of affected stations, or the need for prior discrimination by the licensee. In this way, the program is untailored in any respect and completely obliterates the constitutional rights of all nonminorities seeking a license. It never places minority status as merely one plus factor for the Commission to weigh in licensing as Johnson v. Transportation Agency, 480 U.S. 616, 107 S.Ct. 1442, 94 L.Ed.2d 615 (1987), did in employment. Rather minority status is elevated to the determinative factor.
. All distress sales of broadcast licenses must be approved by the FCC.
. The classification of American Eskimos, Aleuts and Hispanic sumamed individuals as minorities who have been discriminated against in the broadcast licensing field cannot be said to be unquestionably legitimate. "The gross over-inclusiveness of Richmond’s [the FCC’s] racial preference strongly impugns the ... claim of remedial motivation." Croson at -, 109 S.Ct. at 728. See infra, at 933 n. 26.
. The dissent states that the small number of distress sales are insufficient to provide empirical data as to whether proper programming diversity is achieved. Dissent at 946. In my view, the small number of distress sales provides a perfect group for such study.
. Supra, at 927-28.
. The Report of the Appropriations Committee states:
The Congress has expressed its support for (minority preference) policies in the past and has found that promoting diversity of ownership of broadcast properties satisfies important public policy goals. Diversity of ownership results in diversity of programming and improved service to minority and women audiences.
S.Rep. No. 182, 100th Cong., 1st Sess. 76 (1987).
. The Report of the Senate Appropriations Committee cites H.R.Conf.Rep. No. 97-765, 97th Cong., 2d Sess. 37-44, 1982, as authority for its assertion that Congress in the past supported minority preference programs for the broadcasting industry. S.Rep. No. 182, 100th Cong., 1st Sess. 76-77 (1987). The cited House Conference Report (1982) is replete with statements outlining its finding that minority preference programs in broadcast licensing promotes diversity in programming. For example, the Report states: “The nexus between diversity of media ownership and diversity of programming services has been repeatedly recognized by both the Commission and the courts." H.R.Conf.Rep. No. 765, 97th Cong., 2d Sess. at 40 (1982). My personal view, which is identical to that asserted by the FCC brief in Steele v. FCC, No. 84-1176, discussed below, is that, while undoubtedly there may be some exceptions, market forces largely predominate programming — but the congressional finding controls.
Judge Silberman relies on the FCC’s brief in Steele as support for his assertion that there is no nexus between minority ownership and programming diversity. Silberman op., at 922-23. The FCC Steele brief states:
No record has ever been developed to support the critical, underlying assumption upon which this preference scheme is necessarily based — that the racial or gender characteristics of a station’s [sic] owner will have a significant effect on a station's programming. FCC Steele brief at 22.
The brief concluded that "market forces are now and will continue to be, principally responsible for providing diversity of programming and viewpoint." Id. at 22-23. The congressional finding, however, eclipses the FCC’s argument in Steele and the FCC’s brief in Winter Park Communications v. FCC, Nos. 85-1755 and 85-1765, appears to repudiate its Steele brief. In Winter Park, the Commission states that its minority preference policy on the competitive licensing process promotes diversity as minority ownership enhances "the public's exposure to significant, diverse groups that make up the nation.” FCC Winter Park brief at 30.
. Fullilove at 473, 100 S.Ct. at 2772. Chief Justice Burger, speaking in a minority preference case, remarked: A congressional program choice or finding does not “render it (the program) immune from judicial scrutiny."
. TAN 5.
. The dissent “acknowledge^” at p. 948 that the minority distress sale program acts to "reserve certain opportunities to minority purchasers alone” and thus, “more closely resembles” the university admissions plan struck down in Bakke, rather than a "plus factor” scheme the Court has approved of in other contexts. See, Bakke, 438 U.S. at 316-19, 98 S.Ct. at 2761-63; Johnson v. Transportation Agency, 480 U.S. 616, 637-39, 107 S.Ct. 1442, 1455-56, 94 L.Ed.2d 615 (1987) (under Title VII analysis).
. Since the FCC implemented the minority distress sale program in 1978, eleven applications for license or license renewals were denied by the Commission. As of Fiscal Year 1987, the FCC licensed 11,493 broadcast stations, 9,847 of which were commercial stations. See, Federal Communications Commission 53rd Annual Report/Fiscal Year 1987, p. 21, 36-37. Additionally, the FCC Report notes that there are 1,489 translator and booster FM stations, and 5,568 translator and low power television stations which are subject to minority preference programs. Id. at 20-21.
. The FCC’s 1978 Statement of Policy on Minority Ownership of Broadcasting Facilities defines the groups recognized as having minority status for purposes of the distress sale program as follows: "Black, Hispanic Surnamed, American Eskimo, Aleut, American Indian and Asiatic American Extraction.” 68 F.C.C.2d at 781, n. 8 (1978).
. Section 309(e) provides, in part, that upon the Commission finding that a licensee has violated FCC rules, shall: ”[F]ormally designate the application [of the licensee] for hearing on the ground or reasons then obtaining and shall notify the applicant and all other known parties in interest of such action_ Any hearing subsequently held upon such application shall be a full hearing in which the applicant and all other parties in interest shall be permitted to participate.”
. The stakes to the parties involved are certainly substantial. If Shurberg eventually prevails, he will be awarded a license for a station appraised at $6,520,000; if the FCC prevails, Astro-line will preserve a $3,420,000 subsidy and Faith Center will salvage $3,100,000 from its lost license.
. President John F. Kennedy.